National Herald case: SC exempts Sonia, Rahul from personal appearance in court

The Supreme Court on Friday refused to interfere with the order of the Delhi High Court rejecting the plea of Congress President Sonia Gandhi and her son Rahul seeking quashing of the criminal proceedings in the National Herald case before the trial court but gave them some relief by expunging certain observations of the High Court.

The apex court also allowed their plea for exemption from personal appearance in the case before the trial court which is scheduled to take up the matter on February 20. However, it came with a rider with the court saying that it would be open for the Magistrate at any stage to seek their personal appearance as and when required.

Though BJP leader Subramanian Swamy, who is the complainant in the case, contested the plea for exemption from appearance, a bench comprising justices J S Khehar and C Nagappan said that "in the peculiar facts and circumstances of this case and the position occupied by the petitioners, we are of the view that the presence of the petitioners before the trial court would cause more inconvenience than convenience."

"Petitioners shall be exempted from personal appearance and it is needless to say that it will be open for the trial court to seek their presence at any stage if and when their presence is required," the court said.
The bench, which passed the order after hearing senior advocates Kapil Sibal, A M Singhvi and R S Cheema, who were appearing for Gandhis and others, and Swamy, said, "So far determination granted by the Delhi high court in rejecting the prayer for quashing the proceedings against the petitioner, we do not find justification for interfering with it."

However, the apex court said it was not in agreement with the High Court which came out with the firm and conclusive findings and observations relating to the case against the accused persons.

"We are of the view that it was not open for the high court to record the findings conclusively. And the same would have been left to the trial court to record after recording of evidence. We hereby direct expunging of all inferences, findings and observations arrived by high court on various factual aspects of the matter," the bench said.

However, the bench said it affirms the views of the high court and reiterates that Gandhis and other accused can raise all their pleas and issues at the stage of framing of charges before the trial court.

"Accordingly, we permit petitioners to raise all the issues at the stage of framing of charges," the bench said.

While Sibal assailed the ruling of the high court saying that firm findings and observations were made without taking note of the fact that none of the affected party had made any complaint, the bench said, "We are not happy with some of these firm findings made by the High Court and requires limited interference."

"The high court can't draw firm conclusions. We will set aside all these firm conclusions and allow the proceedings to go in the trial court," the bench said during the hearing.

"There can't be a firm conclusion. It will not lead to fair trail. There should be a fair trial. We have to see that firm conclusions by the high court should not stand in the way of fair trail," it said.

Sibal also made the submission that "somebody should have made the complaint of cheating and breach of trust and in the absence of such statement, how can it be said that it is a case of cheating and breach of trust? Had any Congressmen said that he has been cheated? At least somebody should say I have been cheated" then the complaint will hold ground.

Before dictating the order, the bench told Sibal that he will have ample opportunity to raise all these issues before the trial court.

Sibal had on Friday sought urgent hearing of the matter before a bench headed by Chief Justice T S Thakur which had assigned the matter for hearing before the present bench.

The High Court had on December 7, 2015 not only refused to quash the summons issued to the Congress leaders, but had also made observations on their "questionable conduct" on how they took control of the publication.

Subsequently, the Gandhis and others had appeared before a Patiala House Court on December 19 last year when they were granted bail.

The High Court, while refusing the plea of Gandhis and others, had said, "Questionable conduct of petitioners needs to be properly examined at the charge stage to find out the truth and so these criminal proceedings cannot be thwarted at this initial stage."

Along with the Gandhis, five other accused -- Suman Dubey, Moti Lal Vora, Oscar Fernandes, Sam Pitroda and Young India Ltd -- had challenged the summonses issued to them by a trial court on a complaint by Swamy against them for alleged cheating and misappropriation of funds in taking control of the now-defunct daily.

Swamy had accused Sonia, Rahul and others of conspiring to cheat and misappropriate funds by just paying Rs 50 lakh by which Young India obtained the right to recover Rs 90.25 crore which the AJL had owed to the Congress party.

Sonia, Rahul, Vora (AICC Treasurer), Fernandes (AICC General Secretary), Dubey and Pitroda were summoned under sections 403 (dishonest misappropriation of property), 406 (criminal breach of trust) and 420 (cheating) read with section 120B (criminal conspiracy) of the IPC.

The trial court had on June 26, 2014 asked them to appear before it on August 7, 2014 but the order was stayed on August 6 by the Delhi High Court which on December 7, 2015 vacated the stay by rejecting the plea to quash the complaint and summons.

According to Swamy's complaint, all of them were directors of Young India Ltd (YI), a company that was incorporated in 2010 and which took over the "debt" of Associated Journals Ltd (AJL), the publisher of National Herald.